The nature of the Indonesian Blasphemy Law

In human rights conventions, religion tends not to be protected ipso facto. If there are limitations to the freedom of speech and expression, this limitation is aimed at preserving public order. So the human rights conventions does not protect religion, but protect the followers in practising their beliefs and can restrain those freedoms if public ordre is threatened.

However, in the worlds' blasphemy laws, this is not always the case. Some jurisdictions protects religion as it is, irrespective of any public order arguments. Along with the ongoing judicial review of the Blasphemy Law at the Constitutional Court, my working paper tries to outline this debate. I copy-paste below, a paragraph in my working paper.

Article 156a of the Indonesian Criminal Code contained a criminal provision of 5 years of imprisonment for those “who deliberately, in public, which in essence sparked hostility, insulting or abusive views towards religions with the purpose of preventing others from adhering to any religion based on God.”. This Article has been ambiguous with respect to its criminalization theory as there are doubts as to whether it is motivated by Religionschutzstheorie or public order reasons. Judging from its position in the Criminal Code, Article 156a is placed in Chapter V of the Criminal Code which regulates the crimes against public order, along with Article 156 which criminalizes those who spark hatred against others. However, if seen from the content, the Article does not contain any condition which suggest that it will be activated only if carried out in a manner which disturbs the public peace such as the German’s § 166. Thus, Article 156a could be enforced irrespective of whether the insult caused public peace to be disturbed, or whether it would injure the feeling of religious adherents or not. To give a concrete example, Article 156a could be activated although the offence is conducted before persons who are not an adherent of any religion.[1]

The ambiguity of Article 156a has been acknowledged by Prof. Seno Adji with him proposing it to be reformed so that it can fully protect religion. It was proposed that Article 156a should be reconstructed and removed from Chapter V as it is clear that its content is in protecting religion, irrespective of public order.[2] However, even without this modification, in practice Article 156a has been very extensively applied so as to cover cases involving both public order and non public order. With these facts, it can be inferred that the interpretation and application of Article 156a leaned toward Religionschutzstheorie rather than Friedenschutzstheorie or Gefühlschutzstheorie.